Auspro Enterprises, LP v. Texas Department of Transportation ( 2015 )

ACCEPTED
03-14-00375-CV
6564692
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/19/2015 2:17:41 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00375-CV
In the Court of Appeals FILED IN
3rd COURT OF APPEALS
for the Third Judicial District AUSTIN, TEXAS
8/19/2015 2:17:41 PM
Austin, Texas JEFFREY D. KYLE
Clerk
AUSPRO ENTERPRISES, LP,
Appellant,
v.
TEXAS DEPARTMENT OF TRANSPORTATION,
Appellee.
On Appeal from the
345th Judicial District Court of Travis County, Texas
APPELLEE’S SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF
REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015)
KEN PAXTON SCOTT A. KELLER
Attorney General of Texas Solicitor General
CHARLES E. ROY DOUGLAS D. GEYSER
First Assistant Attorney Assistant Solicitor General
General State Bar No. 24059817
MATTHEW BOHUSLAV
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2540
Fax: (512) 474-2697
douglas.geyser@texasattorneygeneral.gov
ORAL ARGUMENT CONDITIONALLY REQUESTED
TABLE OF CONTENTS
Index of Authorities................................................................................. iii
Supplemental Statement Regarding Oral Argument .............................. v
Argument ................................................................................................... 3
I. Reed Considered A Law That On Its Face Imposed
Harsher Restrictions On The Plaintiffs’ Signs Solely
Due To Their Content. ............................................................ 3
II. AusPro’s Sign Violated Content-Neutral Restrictions
Under The Act. ........................................................................ 7
A. AusPro’s Challenge Misreads The Act And Reed’s
Effect. ............................................................................. 7
B. Even If AusPro Could Successfully Challenge
Section 391.005’s Election-Sign Exemption, The
Proper Remedy Would Be To Invalidate Only That
Section. ......................................................................... 12
III. Reed Is Wholly Immaterial To AusPro’s Prior-Restraint
Challenge. .............................................................................. 16
IV. Reed Also Has No Bearing On Any Independent
Protection Afforded By The Texas Constitution. ................. 18
Prayer ...................................................................................................... 20
Certificate of Service ............................................................................... 21
Certificate of Compliance ........................................................................ 21
ii
INDEX OF AUTHORITIES
Cases
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) ....................................................................... 13
Covenant Media LLC v. City of N. Charleston,
493 F.3d 421 (4th Cir. 2007) ......................................................... 13
Coral Springs St. Sys., Inc. v. City of Sunrise,
371 F.3d 1320 (11th Cir. 2004) ................................................. 14-15
Geeslin v. State Farm Lloyds,
255 S.W.3d 786 (Tex. App.—Austin 2008, no pet.) ....... 12-13, 13-14
Hill v. Colorado,
530 U.S. 703 (2000) .......................................................................... 8
Houston Chronicle Publ’g Co. v. City of League City,
488 F.3d 613 (5th Cir. 2007) .......................................................... 12
Jornaleros de Las Palmas v. City of League City,
945 F. Supp. 2d 779 (S.D. Tex. 2013)............................................. 12
Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014).............................................................. 19
McCormack v. Twp. of Clinton,
872 F. Supp. 1320 (D.N.J. 1994) .................................................... 12
Operation Rescue-Nat’l v. Planned Parenthood of Houston &
Se. Tex., Inc.,
975 S.W.2d 546 (Tex. 1998)............................................................ 19
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015) ............................................................ passim
Rose v. Doctors Hosp.,
801 S.W.2d 841 (Tex. 1990)............................................................ 14
iii
Serv. Emps. Int’l Union, Local 5 v. City of Houston,
595 F.3d 588 (5th Cir. 2010) ............................................................ 8
Tex. Dep’t of Transp. v. Barber,
111 S.W.3d 86 (Tex. 2003)........................... v, 2, 6, 7-8, 9, 10, 11, 15
Voting for Am., Inc. v. Steen,
732 F.3d 382 (5th Cir. 2013) .......................................................... 13
Constitutional Provisions, Statutes, and Rules
43 TEX. ADMIN. CODE § 21.146(a)(9) ........................................................ 16
Act of Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex.
Gen. Laws 129 ................................................................................ 15
TEX. GOV’T CODE § 311.032(c) ............................................................ 13, 16
TEX. TRANSP. CODE § 391.002(b).............................................................. 15
TEX. TRANSP. CODE § 391.005 ........................................ v, 7, 10, 14, 15, 16
TEX. TRANSP. CODE § 391.031(a)(1) .................................................. 8, 9-10
TEX. TRANSP. CODE § 391.031(b).............................................................. 11
TEX. TRANSP. CODE § 391.061 .................................................................. 16
TEX. TRANSP. CODE § 391.067 .................................................................. 16
TEX. R. APP. P. 33.1(a) ............................................................................ 17
TEX. R. APP. P. 38.1(i) .............................................................................. 11
iv
SUPPLEMENTAL STATEMENT REGARDING ORAL ARGUMENT
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), does not change the
proper outcome of this case or create a need for oral argument. AusPro’s
assertion that Reed “undoubtedly” requires reversal, AusPro
Supplemental Brief (“Supp. Br.”) ii, rests on the same misreading of the
Texas Highway Beautification Act that infected its opening brief. AusPro
continues to argue that the election-speech exemption (TEX. TRANSP.
CODE § 391.005) disfavors election speech, but that is incorrect. If
anything, the exemption treats election speech better than other speech.
That is the whole point of the exemption, namely, to save some election-
related signs from the Act’s general ban. Although it is true that the Act
favors onsite election speech over offsite election speech (like AusPro’s
sign), “[r]ules distinguishing between on-premises and off-premises
signs” remain content-neutral. Reed, 135 S. Ct. at 2233 (Alito, J.,
concurring); see Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86, 99 (Tex.
2003) (upholding constitutionality of the Act because it “allows all onsite
commercial speech and all onsite noncommercial speech”). Barber
therefore remains controlling. Should the Court nonetheless decide to
hear oral argument, the Department respectfully requests to participate.
v
No. 03-14-00375-CV
In the Court of Appeals
for the Third Judicial District
Austin, Texas
AUSPRO ENTERPRISES, LP,
Appellant,
v.
TEXAS DEPARTMENT OF TRANSPORTATION,
Appellee.
On Appeal from the
345th Judicial District Court of Travis County, Texas
APPELLEE’S SUPPLEMENTAL BRIEF ADDRESSING THE EFFECT OF
REED V. TOWN OF GILBERT, 135 S. CT. 2218 (2015)
TO THE HONORABLE THIRD COURT OF APPEALS:
AusPro’s contention that Reed v. Town of Gilbert, 135 S. Ct. 2218
(2015), affects this appeal rests on a misreading of that case and, more
fundamentally, a misunderstanding of how the Texas Highway
Beautification Act (the “Act”) operates. As it did in its opening brief,
AusPro erroneously argues that the election-speech exemption prohibits
its sign in violation of the First Amendment. To the contrary, that
exemption allows certain election speech that would otherwise be barred
by the Act’s general, content-neutral prohibition of signs visible from
highways. Even if the exemption draws a content-based line, that line
would, if anything, favor the very type of election speech that AusPro
advocates. The exemption thus in no way harms AusPro, and Reed’s
implications for this Court’s consideration of that exemption are
consequently immaterial.
The Texas Supreme Court’s decision in Texas Department of
Transportation v. Barber, 111 S.W.3d 86 (Tex. 2003), which upheld the
Act against a free-speech challenge, remains binding after Reed. Not only
did Reed not consider the kind of offsite-sign ban that the Act imposes,
three of the six justices who joined the majority opinion explicitly
concluded that such a ban remains a content-neutral restriction.
Accordingly, because AusPro has not challenged the Act’s general ban on
signs near Texas highways and such a challenge would fail in any event,
the trial court’s judgment should be affirmed.
2
ARGUMENT
I. REED CONSIDERED A LAW THAT ON ITS FACE IMPOSED HARSHER
RESTRICTIONS ON THE PLAINTIFFS’ SIGNS SOLELY DUE TO THEIR
CONTENT.
The town’s sign code in Reed bears little resemblance to the Act.
The town prohibited outdoor signs everywhere within its borders but
exempted 23 categories to various degrees. 135 S. Ct. at 2224. Most
notably, the town allowed “ideological signs” in all zoning districts at all
times of the year; “political signs” in only certain zoning districts during
limited times around elections; and “temporary directional signs” in even
fewer areas and during even more limited times than “political signs.” Id.
at 2224-25. These three categories of signs were also subject to different
size restrictions, with temporary directional signs receiving the least
favorable treatment on this aspect as well. Id.
The plaintiffs were a church and its pastor who wanted to post
temporary signs announcing meeting times and locations for church
services. Id. at 2225. The church owned no building, so the meetings
occurred at varying locations, and signs were thus posted throughout
town. Id. The church was twice cited for posting signs outside the narrow
time limits afforded to temporary directional signs (which limits did not
3
apply to, for instance, ideological signs). Id. The sign code thus treated
the plaintiffs’ signs more restrictively than other signs based entirely on
the signs’ content.
Accordingly, focusing on those three categories, the Court held that
the sign code was content-based “on its face.” Id. at 2227. The six-justice
majority explained that strict scrutiny applies to content-based laws, i.e.,
“those that target speech based on its communicative content.” Id. at
2226; see id. at 2227 (explaining that government regulation is content-
based “if [the] law applies to particular speech because of the topic
discussed or the idea or message expressed” or if it “defin[es] regulated
speech by its function or purpose”).
The town’s code was facially content-based because its restrictions
“depend[ed] entirely on the communicative content of the sign” at issue.
Id. at 2227. Specifically, the church’s “signs inviting people to attend its
worship services are treated differently from signs conveying other types
of ideas.” Id.; see id. at 2230 (explaining that church’s signs were treated
less favorably than ideological or political signs). The Court found it
irrelevant that “the Town did not adopt its regulation of speech [based
on] disagree[ment] with the message conveyed, and its justifications for
4
regulating temporary directional signs were unrelated to the content of
the sign.” Id. at 2227 (citation and internal quotation marks omitted)
(alterations in original). That is because “an innocuous justification
cannot transform a facially content-based law into one that is content
neutral.” Id. at 2228.
Because the sign code was content-based, it had to satisfy strict
scrutiny. Id. at 2231. The Court assumed that the proffered justifications
of “aesthetic appeal and traffic safety” were “compelling governmental
interests,” but concluded that the code’s 23 categories rendered it
“hopelessly underinclusive.” Id.1 For instance, temporary directional
signs were just as aesthetically unpleasing as ideological or political ones,
and temporary directional signs did not “pose a greater threat to safety
than do” those other signs. Id. at 2231-32; see id. at 2232 (“If anything, a
sharply worded ideological sign seems more likely to distract a driver
than a sign directing the public to a nearby church meeting.”); id. at 2239
(Kagan, J., concurring in the judgment) (writing that the sign code’s
1 AusPro misstates the opinion on this point, writing that the Court found the
“interests” underinclusive. AusPro Supp. Br. 6, 11. Not so. Rather, the Court decided
that the town had not narrowly tailored its code to further those interests. The Court
did not, however, say anything to indicate that aesthetic appeal and traffic safety did
not (or could not) rise to the level of “compelling” government interests.
5
distinctions do not satisfy “even the laugh test,” because, for example,
“[w]hy exactly a smaller sign better helps travelers get to where they are
going is left a mystery”).
Writing for himself and two other justices who joined the majority
opinion, Justice Alito explained that the Court left undisturbed a number
of common sign regulations that would remain content-neutral. Id. at
2233 (Alito, J., concurring). Most importantly, these three justices
concluded that “[r]ules distinguishing between on-premises and off-
premises signs” would have to satisfy only the time, place, and manner
test. Id.; see also id. (writing that governments may put up “directional
signs and signs pointing out historic sites and scenic spots”).2 As
explained below and as Justice Alito’s opinion makes clear, Reed leaves
intact the Texas Supreme Court’s conclusion in Barber that the Act and
its ban on offsite signs survive First Amendment scrutiny.
2 The three remaining justices concurred only in the judgment and would have
assumed that intermediate scrutiny applied, but nevertheless invalidated the town’s
sign code due to “[t]he absence of any sensible basis for” the distinctions among the
23 categories of signs. Id. at 2239 (Kagan, J., concurring in the judgment).
6
II. AUSPRO’S SIGN VIOLATED CONTENT-NEUTRAL RESTRICTIONS
UNDER THE ACT.
A. AusPro’s Challenge Misreads The Act And Reed’s
Effect.
AusPro’s claim fails because the Act does not impose a content-
based restriction on election signs. AusPro’s argument to the contrary
doubles down on its opening brief’s misstatement on how the Act
operates. AusPro writes that the election-sign exemption “singl[es] out
[election] speech . . . for disparate treatment.” AusPro Supp. Br. 8. That
is simply not so. As the Department explained, the exemption does not
prohibit anything at all. Rather, it does what exemptions do: it saves
certain election signs from the general ban on signs visible from Texas
highways. See Department Br. 17-18; TEX. TRANSP. CODE § 391.005
(providing that the Act “does not apply” to certain election speech).
Crucially, if the Legislature repealed the election-sign exemption,
AusPro’s sign would still be illegal. The “election sign exemption
challenged by AusPro,” AusPro Supp. Br. 7, therefore did not cause its
injury. As a result, even if Reed confirms Barber’s assessment that “the
7
election sign exemption is arguably content based,” 111 S.W.3d at 100,
AusPro’s challenge still fails.3
What does injure AusPro is the Act’s prohibition of signs “within
660 feet of the nearest edge of a right-of-way if the advertising is visible
from the main-traveled way of the interstate or primary system.” TEX.
TRANSP. CODE § 391.031(a)(1). AusPro does not challenge that restriction,
which is plainly not content-based. Accordingly, the election-sign
exemption from that ban in no way “restricts” AusPro’s speech.
Trying to place itself in the same box as the Reed plaintiffs—whose
temporary directional signs were posted outside a time limit that would
not have applied had their signs’ content been “ideological”—AusPro
argues that, “[i]f the sign relates to an election, the Act strictly limits the
speech to a limited window,” but “prohibits speech relating to elections
3 AusPro’s invocation of a facial challenge does not change this result because it still
cannot assert an injury derived from the election-sign exemption. See Department
Br. 19-20; cf. Serv. Emps. Int’l Union, Local 5 v. City of Houston, 595 F.3d 588, 598
(5th Cir. 2010) (holding that, in a First Amendment facial challenge, the “plaintiff
must establish injury under a particular provision of a regulation that is validly
applied to its conduct, then assert ‘a facial challenge, under the overbreadth doctrine,
to vindicate the rights of others not before the court under that provision’ ” (citation
omitted)). Moreover, even if AusPro could assert an overbreadth facial challenge, it
has not made the necessary showing that the Act’s overbreadth is “not only [] real,
but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Hill v. Colorado, 530 U.S. 703, 732 (2000) (citation and internal quotation marks
omitted).
8
along interstate and primary highways at all other times of the year.”
AusPro Supp. Br. 9. It likewise asserts that “other signs . . . are permitted
to remain on display all year.” Id. at 13. That assessment of the Act is
patently wrong. As the Department again explained, and the Texas
Supreme Court made clear, “the Act allows all onsite commercial speech
and all onsite noncommercial speech” throughout the year. Barber, 111
S.W.3d at 99. Had AusPro’s election speech pertained to activities on its
premises, its sign would have complied with the Act. See Department Br.
24-27. AusPro’s refusal to acknowledge this facet of the Act or Barber’s
holding dooms its arguments.
The difference between AusPro’s position and the challengers’ in
Reed is stark. In Reed, the sign code contained impermissible content-
based exemptions that treated other signs more favorably than the
challengers’, based solely on the content of the challengers’ signs. Here,
as explained, the election-sign exemption does not treat any type of
content more favorably than AusPro’s content. Accordingly, unlike in
Reed, a content-based restriction does not harm AusPro. Its sign is illegal
not because it is election speech but because of its location, i.e., “within
660 feet of the nearest edge of a right-of-way if the advertising is visible
9
from the main-traveled way of the interstate or primary system.” TEX.
TRANSP. CODE § 391.031(a)(1). Again, even without the challenged
exemption in section 391.005, AusPro’s sign would remain illegal. By
contrast, if the plaintiffs’ signs in Reed had been, for instance, “ideological
signs,” their signs would have been permitted in all zoning districts at all
times of the year. 135 S. Ct. at 2224. A content-based distinction therefore
harmed the Reed plaintiffs in a way that the election-speech exemption
does not harm AusPro.
Notably, AusPro does not appear to challenge the Act’s
onsite/offsite distinction as content-based. See, e.g., AusPro Supp. Br. 7
(arguing only that election-sign exemption is content-based regulation
and referring to “election sign exemption challenged by AusPro”). That
choice is prudent, for such a challenge would fail. Barber held that the
onsite-sign exemption “regulates signs based on their location,” not their
content. 111 S.W.3d at 102; see also id. at 101 (discussing cases). And, as
discussed above, Reed does not undermine that holding. See Reed, 135 S.
10
Ct. at 2233 (Alito, J., concurring) (concluding that rules distinguishing
between offsite and onsite signs are content-neutral).4
Likewise, AusPro’s targeted complaint about the election-sign
exemption also does not appear to contest the Act’s other limited
exemptions, which pertain either to onsite activities, directions, or safety.
See TEX. TRANSP. CODE 391.031(b); cf. AusPro Supp. Br. 14 (arguing that
“[t]he election sign exemption is not narrowly tailored” but not making
similar argument about other exemptions).5 In dicta, the Reed majority
all but announced that signs “to guide traffic or to identify hazards and
ensure safety” would survive. 135 S. Ct. at 2232 (majority op.). And
4 Admittedly, Reed may invalidate one of Barber’s alternative rationales for finding
that the Act was content neutral. The Texas Supreme Court wrote that “the Act is
also content neutral because it is ‘justified without reference to the content of the
regulated speech.’ ” Barber, 111 S.W.3d at 100 (first emphasis added) (citation
omitted)). After Reed, an innocuous purpose cannot save a facially content-based
statute from strict scrutiny. But to the extent that Barber was merely indicating that
the Act did not discriminate in its purpose, as well as not discriminating on its face,
that analysis remains appropriate under Reed. In all events, AusPro has not
suggested the Legislature’s purpose was improper, and the Act is facially content
neutral under Barber because it regulates signs based on their location.
5 AusPro vaguely states, without discussion or analysis, that “the Act ‘does make
certain distinctions based on subject matter,’ such as the exemptions for directional
signs, signs relating to natural wonders or historic attractions, and election signs.”
AusPro Supp. Br. 9 (quoting Barber, 111 S.W.3d at 98). This conclusory assertion
does not raise a challenge based on those other exemptions, cf. TEX. R. APP. P. 38.1(i),
and is inconsistent with AusPro’s assertion of a challenge to the election-sign
exemption, full stop.
11
Justice Alito’s concurrence similarly determined that the majority
opinion does not cast doubt on the constitutionality of “all manner of
signs to promote safety, as well as directional signs and signs pointing
out historic sites and scenic spots.” Id. at 2233 (Alito, J., concurring). This
result is eminently reasonable. The First Amendment does not force state
and local governments to choose between allowing all types of signs or
prohibiting all types of signs, including, for instance, those for the
protection of life and property.6 The Constitution is not so inflexible.
B. Even If AusPro Could Successfully Challenge Section
391.005’s Election-Sign Exemption, The Proper
Remedy Would Be To Invalidate Only That Section.
AusPro suggests that “[b]ecause [it] raised both facial and as-
applied challenges,” the Court has the “option[]” to “broadly” strike down
the Act and its regulations as a whole. AusPro Supp. Br. 18. That is not
accurate, for Texas law presumes severability. Geeslin v. State Farm
6 Admittedly, the majority’s and concurrence’s conclusions may be in some tension
with older decisions suggesting that traffic safety is not a compelling interest. See,
e.g., AusPro Appellant’s Br. 44 (citing McCormack v. Twp. of Clinton, 872 F. Supp.
1320, 1325 (D.N.J. 1994)). But see, e.g., Jornaleros de Las Palmas v. City of League
City, 945 F. Supp. 2d 779, 797-98 (S.D. Tex. 2013) (“According to the City, the primary
government interests in enforcing this statute against day laborers are to promote
traffic safety and control. Public safety is a compelling interest at the heart of
government’s function.” (citing Houston Chronicle Publ’g Co. v. City of League City,
488 F.3d 613, 622 (5th Cir. 2007)). Those decisions, however, would have to be
reconsidered in light of Reed.
12
Lloyds, 255 S.W.3d 786, 797 & n.4 (Tex. App.—Austin 2008, no pet.); see
TEX. GOV’T CODE 311.032(c) (“[I]f any provision of the statute or its
application to any person or circumstance is held invalid, the invalidity
does not affect other provisions or applications of the statute that can be
given effect without the invalid provision or application, and to this end
the provisions of the statute are severable.”); cf. Voting for Am., Inc. v.
Steen, 732 F.3d 382, 398 (5th Cir. 2013) (noting Texas’s “strong
severability statute”).7 “When a part of a statutory scheme is
unconstitutional, a court should—where possible—sever out the
unconstitutional aspects and save the balance of the scheme.” Geeslin,
255 S.W.3d at 797. This Court described the severability inquiry as one
into legislative intent:
When, therefore, a part of a statute is unconstitutional, that
fact does not authorize the courts to declare the remainder
void also, unless all the provisions are connected in subject-
matter, dependent on each other, operating together for the
same purpose, or otherwise so connected in meaning that it
cannot be presumed the legislature would have passed the one
without the other. . . . If, when the unconstitutional portion is
stricken out, that which remains is complete in itself, and
7 Severing is appropriate even in the First Amendment context. See, e.g., Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 501, 506 & n.14 (1985); cf. Covenant Media LLC
v. City of N. Charleston, 493 F.3d 421, 438 (4th Cir. 2007) (noting “principle that
invalidating a whole statute may nullify more of the work of the people’s elected
representatives than is constitutionally necessary”).
13
capable of being executed in accordance with the apparent
legislative intent, wholly independent of that which was
rejected, it must stand.
Id. at 797 (quoting Rose v. Doctors Hosp., 801 S.W.2d 841, 844 (Tex.
1990)).
AusPro has not argued that severability is impermissible here. Far
from it, AusPro concedes that “the Court could simply strike down the
election sign exemption contained in the Act and its regulations and leave
the rest of the Act and the regulations intact.” AusPro Supp. Br. 18. The
Department agrees that, should the Court find that section 391.005
violates strict scrutiny, it should invalidate only that section and leave
the remainder intact.
Indeed, there is no basis for striking down the entire Act. The Act
easily operates as a coherent whole without section 391.005. It fully
specifies how signs are regulated without depending on the election-sign
exemption. The only difference would be that some signs that were
permissible during the 100 days around an election would now be
banned. But the Legislature would obviously prefer that scenario to one
in which all signs can be posted in all areas at all times. See, e.g., Coral
Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1348 (11th Cir.
14
2004) (rejecting facial challenge because “it [is] wholly implausible that
the City would have preferred no sign ordinance at all to one that
contains all the current parts of the Amended Sign Code other than the
suspect content regulations”); TEX. TRANSP. CODE § 391.002(b)
(legislative declaration that the Act “is necessary . . . to: (1) promote the
health, safety, welfare, morals, convenience, and enjoyment of the
traveling public; and (2) protect the public investment in the interstate
and primary systems”); Barber, 111 S.W.3d at 103 (“[A]esthetics and
public safety on the highway are recognized as substantial governmental
goals.”).
That conclusion is confirmed by the fact that section 391.005 was
not added until two years after the Legislature passed the Act. See Act of
Apr. 25, 1997, 75th Leg., R.S., ch. 60, § 1, 1997 Tex. Gen. Laws 129, 129.
This shows that the Act (unsurprisingly) functions without the
exemption. The limited remedy of invalidating section 391.005 is thus the
only permissible one.
By contrast, AusPro’s request for facial invalidation asks the Court
to nullify the entire Act based on the arguably content-based nature of a
single, narrow exemption that does not matter one whit to AusPro’s
15
conduct. If the Court does not reject AusPro’s free-speech challenge, it
should therefore craft an appropriately narrow judicial remedy by
invalidating only section 391.005 (and the corresponding administrative
regulation 43 TEX. ADMIN. CODE § 21.146(a)(9)).8
III. REED IS WHOLLY IMMATERIAL TO AUSPRO’S PRIOR-RESTRAINT
CHALLENGE.
AusPro also could have complied with the Act by obtaining a license
and permit for its sign. See TEX. TRANSP. CODE §§ 391.061, .067;
Department Br. 34-35. On appeal, AusPro argued that these licensing
and permitting regulations comprised unconstitutional prior restraints.
The Department contended that AusPro forfeited this challenge by
omitting it in the trial court and that the challenge was meritless. In its
Supplemental Brief, AusPro addresses only the forfeiture argument. But
Reed could not possibly touch on Texas’s rules for preserving claims in
the trial court. Although this Court’s order permitted supplemental
briefing solely to “address[] the effect of the Reed opinion on this appeal,”
8 Reed did not consider severability. But the sign code there, with its 23 separate
categories imposing myriad, varied restrictions, likely would have been more difficult
to parse than the mere excision of the later-enacted section 391.005. Moreover, there
is no indication that the town’s sign code had a severability presumption similar to
Texas Government Code section 311.032(c).
16
Mem. Op. 2, Apr. 29, 2015 (order abating appeal and granting
supplemental briefing), the Department will respond so that the Court
has full briefing on the waiver issue.
The Department explained that a prior-restraint challenge
fundamentally differs from an absolute ban on speech and that, in the
trial court, AusPro never raised a prior-restraint challenge nor cited a
single licensing or permitting regulation. Department Br. 35-37; cf. id. at
44-45 (explaining how AusPro’s failure prejudices the Department on
appeal). AusPro responds that it “has every right to challenge TxDOT’s
licensing and permitting regime because it was prosecuted civilly for
failure to comply with it.” AusPro Supp. Br. 16. The Department agrees.
But to challenge the licensing and permitting scheme, AusPro had to
actually challenge the licensing and permitting scheme. The point is that
AusPro failed to do so until its opening brief on appeal. Yet raising these
arguments for the first time on appeal plainly does not satisfy Appellate
Rule 33.1(a) or this Court’s precedents on waiver. See Department Br. 35-
37.
Attempting to cure that deficiency, AusPro proclaims that
“[w]ithout question” it did indeed raise a prior-restraint claim by
17
asserting “that ‘the statutes and regulations on which [the Department]
relies violate AusPro’s right to free speech’ on their face and as applied
under the First Amendment and the Texas Constitution.” AusPro Supp.
Br. 17 (citation omitted). That is far too vague and broad a statement to
put the Department and trial court on notice of a prior-restraint
challenge, which involves a different legal test and different facts.
Regardless, AusPro’s prior-restraint challenge is meritless. See
Department Br. 37-45. The Department’s arguments to that effect rested
largely on AusPro’s misinterpretation of the licensing and permitting
regulations. Reed, needless to say, had no occasion to address Texas’s
regulations under the Act. That decision therefore has no effect on this
part of AusPro’s appeal.
IV. REED ALSO HAS NO BEARING ON ANY INDEPENDENT PROTECTION
AFFORDED BY THE TEXAS CONSTITUTION.
AusPro’s Supplemental Brief discusses its complaint under the
Texas Constitution, even though (as AusPro implicitly concedes) the U.S.
Supreme Court could not possibly have anything to say about Texas’s
Constitution.
On the merits of this complaint, AusPro offers nothing to
rehabilitate the deficiencies identified by the Department’s principal
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brief. Instead, it resorts to baseless allegations, falsely asserting that the
Department is “tr[ying] to dodge the Texas Constitution.” AusPro Supp.
Br. 19. To the contrary, the Department merely wants AusPro to comply
with Texas Supreme Court precedent requiring a litigant to explain why
the Texas Constitution offers greater protection than its federal
counterpart, rather than resting on the litigant’s mere say-so. See, e.g.,
Kinney v. Barnes, 443 S.W.3d 87, 92 (Tex. 2014) (“‘Article I, Section 8
may be more protective of speech in some instances than the First
Amendment, but if it is, it must be because of the text, history, and
purpose of the provision, not just simply because.’” (quoting Operation
Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975
S.W.2d 546, 559 (Tex. 1998)); Department Br. 46-47. AusPro evidently is
unable to do so. Its challenge must fail.
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PRAYER
The judgment of the district court should be affirmed.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
SCOTT A. KELLER
Solicitor General
/s/ Douglas D. Geyser
DOUGLAS D. GEYSER
Assistant Solicitor General
State Bar No. 24059817
MATTHEW BOHUSLAV
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2540
Fax: (512) 474-2697
douglas.geyser@texasattorneygeneral.gov
COUNSEL FOR APPELLEE
TEXAS DEPARTMENT OF TRANSPORTATION
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CERTIFICATE OF SERVICE
On August 19, 2015, the foregoing brief was served via File &
ServeXpress and e-mail on:
Meredith B. Parenti
PARENTI LAW PLLC
P.O. Box 19152
Houston, Texas 77224
[Tel] (281) 224-5848
[Fax] (281) 605-5677
meredith@parentilaw.com
Counsel for Appellant AusPro Enterprises, LP
/s/ Douglas D. Geyser
Douglas D. Geyser
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this
brief contains 3,895 words, excluding the portions of the brief exempted
by Rule 9.4(i)(1).
/s/ Douglas D. Geyser
Douglas D. Geyser
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